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tv   [untitled]    July 21, 2012 10:30pm-11:00pm PDT

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that viewpoint. >> absolutely, and instead of those concerns. i was just wondering about the desire to short for the sake of shortening. i completely understand the purpose of the rulings and the reasons why they are important to the findings of facts and conclusions. may i address your point about credibility in the brown case qwee? may i? >> do any commissioners have questions for ms. kaiser or comments about those paragraphs? ok, please proceed. >> ok. you remember i and at the last conversations and i hope you will not be mad at me if i do not represent each person's views perfectly because i'm hearing a panoply of use.
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-- a panoply of use. i did not ignore the credibility of the victim as the main point of this declaration, but i also heard that the commissioner say, is and this important for us to determine what kind that the constitutes an act of domestic violence? i heard her ask if it was support for helping the commission determined whether sheriff mirkarimi pleaded guilty to a crime of domestic violence. commissioner stubbly was concerned that there be information about the nature of domestic violence and background about how to interpret several elements or actions within the context of domestic violence. commissioner lou said that was important or that it may be important, the facts that are discussed may be important to understand how the behavior's may affect the domestic violence or why a witness would
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recant. those are separate things. commissioner randy wanted to know -- commissioner remy wanted to know whether it fit the definition of domestic violence, whether or not it is the legal definition. i heard many different views about why this might be relevant, which included victim credibility, but also exceeded it. that is why in my view, and frankly, i addressed the objections that mr. kopp raced to specific paragraphs and bullet 0.6, and it was my view and the first place that given the panoply of reasons that most of the declaration was from. >> i thought you were going to address brown. >> ok. brown is indeed a case that
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talks about -- in that case, and that setting, the expert declaration went to helping the court understand the reasons why the victim would have recanted. but there are many other cases about the domestic violence expert, and are not limited to victim credibility. if you like me to bring in a series of case cites that show that is the evidence code that can include any reason why an expert would have more knowledge, i am happy to do that. it is true that is focused on that, but it did not limit the inquiry. >> of all the things you mentioned, i did not think paragraph 64-75 go to that. my fellow commissioners objections or concerns about the
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testimony? the paragraphs that talk about the indications of domestic violence, the effect that it has on the victim, how victims react, those are all prior to these paragraphs. i would recommend that we strike a 64-75. are there dissenting views? >> no, i was just going to say that i had made a list, very similar to your list, of the paragraphs to exclude, given the concerns i had before. i was still going to exclude pretty much the same paragraph you are talking about. so i completely agree with your perch. >> -- with your approach. >> paragraphs 82-87. >> i'm sorry, what did you just
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strike? >> 64-75. >> thank you. i'm sorry, what paragraphs are we discussing now? >> 82-87. >> thank you. >> you know, i agree that what happened with the guns has become relevant. it is just not clear to me what an expert in domestic violence should be saying about them.
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the sheriff, obviously, was allowed by law to carry these guns, and her conclusions appear to be the types of conclusions that i would not expect an expert in domestic violence to make. so that is why i agree with the relevance objection. of course, mr. kopp, if i have that wrong or -- >> mr. chairman,. re 87 paragraph 87 may be excluded, but it does not necessarily relate to the guns in the previous paragraphs. >> that is true. this appeared to me to be essentially a neutral conclusion.
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>> it was excluded because it was a legal conclusion. though i suspect expert witnesses are allowed to give legal conclusions, even though they may be wrong. >> she teaches domestic violence laws and wrote the textbook. boy, if there is anything that she is qualified to opine on, it is what domestic laws is. you may feel they did not need the help, but she is certainly qualified to offer that opinion. >> any objections from the commissioners to striking a 82- 87? >> i would keep 87 in. >> any other views? i can live with that. >> i agree. >> ok, so a 82-86 will be stricken.
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mr. kopp, i'm tired of carrying your relevance objection. that i apparently took more seriously than you did. >> well, you have heard my view. >> i will let you did this. >> i will focus on the paragraph you have already raised. >> no, just the ones you raised. >> ok, so 95? yeah. i think much of this was already stricken in the various declarations. i think the determination was already made this was not relevant.
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>> ms. kaiser? >> our experts have relied on here say, which was one of the bases, but i did not remember perfectly for striking this information last time. it is relevant for the same reasons that the florez testimony is relevant, it is relevant because it goes to understanding the likelihood of whether it was more severe incident on december 31. including all of the factual aspects of the incident, or whether or it was not. iyou heard the testimony yesterday that in her opinion, the incident must have been less significant because there were no indications of economic abuse or emotional abuse or verbal abuse, and here is our expert
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looking at other statements that she considers reliable that she believes are evidence that it is more likely that this is domestic violence that is more severe. that is the relevance. >> okay, any questions for ms. kaiser? this does rely on paragraphs that were stricken from miss madison's declaration, which is why i recommend that we strike it from the other declaration. is there any dissenting view from my fellow commissioners? ok, 96, i think is basically the same. i would strike 96, too, for that same reason. >> may i speak to that point? as a matter of law, there is not a problem, the expert relied on evidence that was proper but not admit it. an expert may rely on other things beyond admitted evidence. >> that it is not very helpful to us if she relies on evidence that we said was not reliable or
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helpful to us. i would strike 96. it128. >> it is the same issue. this was all stricken. >> ms. kaiser? >> he made this relevance determinations and here say determinations before you had the benefit of this expert explanation of why these facts or assertions are indeed relevant to an analysis of the events of december 31. it may be that did not change your mind, but the mere fact that he struck them before does not mean that you still have to strike them now. >> well, ms. kaiser, don't we have to accept that the facts
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set forth in paragraph 128 are true, and we have no evidence to support that, so they are undocumented? >> you are entitled as the fact- finder to make a determination of whether or not you believe that it is reasonable of the expert to rely on these reports. the fact that she relies on them does not make the evidence true if you had met her report. it is still within your judgment to decide what weight to give things after you see her analysis and the reason why she asserts it. >> the difficulty i am having with that argument. it is one thing to say an expert can rely on here say, can rely on other material, but where there is no evidence and the expert says these facts, and if
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these facts are not true, then i suppose we could subject the expert is because that paragraph -- it seems to me it is a backdoor way of putting and things that are not in the record. >> i find -- you are seeing my hands raised through difficulty, i guess, because the law does allow an expert to use their own expert judgment and experience to decide what is the proper basis of their own expert opinion. now, in the judicial context, right, when judges make a legal determinations or juries make legal determinations, we have
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all sorts of rules about what is appropriate to rely on. one of the rules we have, though, is that experts are special. experts use their own judgment about in terms of the wrong field, even if this is not something that a judge would necessarily say, yes, this is a proper basis for my decision. an expert uses their own discipline to determine, "this makes sense when we are doing our analysis." i think what you are seeing is that in the context of a domestic violence expert, there at is almost a required reliance on here say, we're particularly in proceedings like this the story that started here may change and there may be reasons for that. >> but we ruled that these factual statements were irrelevant to the issue that we
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have to decide. and so therefore, i mean, i just cannot conceive -- i have tried a lot of cases, and i cannot conceive of a judge saying, i have decided these facts are irrelevant to the issue i have to decide, and that an expert says, relied on these facts in informing my opinion and that you should reach "x." >> commissioner? >> the way i'm looking at it, we decided that was not relevant to our findings whether what was then the declaration as referred to here was relevant to what we were doing. i will just refer to the things, the names on the becker account or where the child slept may not
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be relevant, but we may feel we have to make a judgment about the nature and consequences of domestic violence or what was going on in this situation. so i feel as though i could come to a different conclusion about whether i wanted that and whether it was relevant as a factual matter in the context of the declaration, but come to a different result here about whether i want to understand what goes on in domestic violence and how that might affect the victim or alleged victims. i'm not going to get into that issue. whether that might affect the nature of the testimony by the individual about what went on. in short, i would be with ms. kaiser. >> commissioner, the thing is that mr. kopp --
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>> microphone. >> i'm sorry, mr. kopp, if this evidence were to come in, part of your expert, he would have a right to try and prove those facts are not true. to undercut the experts, right? so i guess another reason why i am reluctant to join commissioner studley letting it in is to say i do not want to open up this hearing to all of these peripheral issues that we have decided are not relevant to what we have to decide. so that if your expert is going to rely on this information, mr. kopp could legitimately say you have to give me a chance to show those facts are not true.
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>> i would respond he did have that opportunity. he had that opportunity -- he has the opportunity to cross- examine and make this points regardless of your ruling. he knew that was a possibility that you might decide that it was relevant in terms of how the experts reached her conclusion and decided he did not want to cross-examine her even then. >> it would be difficult for your opponent to anticipate cross-examining on a subject that we excluded. i am with commissioner renne. the point is to help the fact finder determine if there was official misconduct and if the facts on which that expert relies are not facts that we deem relevant, it is difficult to do find this paragraphs.
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it would be inconsistent to find this paragraphs helpful in our determination if we thought the underlying facts were not. >> it is possible that with the understanding i need is in her more general description of the nature and elements of domestic violence and it troubles the rest of you. maybe i am in the minority and i am not trying to prove that these things are true and i do not think she is, either. she is saying if we thought these things were going on, it would fit into a certain pattern. i understand we are saying. >> i think it is addressed in the rest of her declaration. 135. >> what was the ruling on 128?
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>> that it would be stricken. >> i would like to remind the commission that even mr. kopp said when you are making evidenciary release about fact witnesses, information did not need to be admitted into reliance -- into evidence. i will not belabor the issue. >> mr. kopp, 135. >> i think, i do not have the williams declaration before me with the portions that were struck. i am not sure if part of this was not in evidence.
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i do not have any particular comments on this paragraph. >> i think i thought was the relevance problem is we struck paragraph four. i think -- i think the first two sentences rely on paragraph 3 might be ok. ms. kaiser, do you have a response with respect to paragraph 135? >> i guess i would say that even the part you want to strike is consistent with what she was testifying to, the ease with which sound travels. i do not have feelings about it. >> i would recommend we strike lines 23 through 25 of paragraph
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135. is there any dissenting view from the commissioners? 139. ms. kaiser? >> this is the portion of the williams decoration that was readmitted by agreement. >> ok. 135 -- 139 is in.
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139 relies on 142. is that i invite this position? it was not in previously. >> that is not part of the stipulation. i will grant you you're standing objection on evidence being not admitted. is there any objection from the commissioners to excluding 142 which relies on paragraph 13 of volumes which was excluded from evidence? ok. that will be excluded. i think i had said 146 to 150.
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in light of us having admitted flores, this probably should come in. ms. kaiser, i truss to agree. >> yes. >> mr. kopp. >> i will submit. i do not have any argument. president of the we should strike 1463150 unless there the -- there is a dissenting view -- 146 through 150. i had 182 to 184, which is a big chunk. this seemed to relate more to
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events that occurred after what we're concerned about but i opened it up for argument from mr. kopp and ms. kaiser and the commissioners to express their views. >> my only comment is this goes along with my objection to that bullet point that still i do not think has been ruled upon. sheriff mirkarimi's post december 31 through january 13 statements, january 4 statement. -- statements. i do not see the relevance. >> i would like to address the two portions that are encompassed your separately. >> ok. >> the this one -- first one is ms. lopez's statement.
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1523157, i -- 152 through 157. it goes to the victim was the credibility and finds that she is recanting. she is describing things that suggest the testimony you heard was a recantation rather than finally getting to the truth. i think this is relevant for the direct point i and brown -- in brown. >> the core of it, actually. >> i would overrule over that. >> objection. >> any dissenting view? it is tangential but it is along the same lines. ok. >> you're talking about 151 to
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157? i would agree. in terms of the next batch, 158 through 180, this goes directly to what commissioner liu was talking about last time. whether or not these indicationn unreformed better at this point, has not fully rehabilitated himself if indeed he was a better in the first place. -- a batterer in the first place. it is rebuttal evidence more than anything else. you heard the sheriff come in and testify after you gave me these instructions. you heard him come in and testify that there is a new professional standard that he can help set as the chief law- enforcement officer by modeling the power of personal redemption. frankly, that may be true. that may be a valuable standard but a chief law enforcement --
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that a chief law-enforcement officer could model pre we do not dispute that. what we do dispute is whether or not he is ready to model it. now, i agree, i know you're thinking, what does that have to do with whether he committed official misconduct in the first place? libya had -- maybe it has nothing to do with it. if you are going to entertain that line of thought and that line of argument or be sympathetic to it, i think this evidence needs to come in. >> ms. kaiser, what i want to say for the record is that i did talk about these paragraphs at the last meeting will lead discussed dr. -- when we discussed dr. tillemann -- lemmon's testimony.
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i do not think that we're here to determine whether he is acting like an unreformed batterer. we're here to determine what conduct took place and whether that conduct, whether those actions rose to the level of official misconduct. and want to make the record clear that that was my position and still is. >> you are right. i should address that. i got a little in love with my rebuttal argument which i think it is a good argument. to go back to your point, i think that is relevant in the same sense that some of the other evidence that you are striking is relevant. it goes to the likely head again, this is a major domestic violence relationship, his conduct before the event is relevant to try to figure that